259 F2d 267 Powell v. Pennsylvania Railroad Company

259 F.2d 267

Robert POWELL and Elizabeth W. Lawrence, Appellants,
United States of America (Intervening Plaintiff),
v.
The PENNSYLVANIA RAILROAD COMPANY, George M. Harrison, Individually and as Grand President of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees; and S. V. M. Loehr, General Chairman, Individually and as General Chairman of the Pennsylvania System Board of Adjustment, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees.

No. 12696.

United States Court of Appeals Third Circuit.

Argued September 15, 1958.

Decided October 1, 1958.

Lawrence J. Richette, Philadelphia, Pa., for appellants.

Allen S. Olmsted, 2d, Philadelphia, Pa., for appellees.

Before GOODRICH, STALEY and HASTIE, Circuit Judges.

PER CURIAM.

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1

This is a motion to dismiss an appeal following a refusal by the district court to vacate an order previously made.

2

So far as the Pennsylvania Railroad is concerned, the original dismissal with prejudice settles the matter. The Railroad complied with the court's order and no timely appeal was taken. The motion to vacate does not extend the time for appeal. This matter is covered by our decisions in Raughley v. Pennsylvania R.R., 3 Cir., 1956, 230 F.2d 387, and Safe Harbor Waterpower Corp. v. Federal Power Commission, 3 Cir., 1941, 124 F.2d 800.

3

So far as the amount to be distributed pursuant to a court order is concerned, that is clearly settled by the stipulation made between the parties and recognized in the argument before Judge Kirkpatrick March 27, 1958. If there are other claimants to the fund in addition to those represented by the attorneys in the case before us, they are not involved in this appeal and have no standing in court at the present time.

4

So far as the claim by the attorneys for additional compensation is concerned, the appeal is timely. They claim an arrangement with the clients whereby they are to receive one-third of the fund. The court has allowed $30,000 which is one-tenth of the fund. If this is incorrect they are entitled to have the error corrected.

5

The motions to dismiss will be granted except so far as the claim by the attorneys for additional compensation is concerned. The briefs may be typewritten.